SC Reference No 1 of 1997; Re s19 of the Constitution [1998] PNGLR 453 (14 July 1997)

[1998] PNGLR 453

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO 1 OF 1997

REFERENCE BY THE PRINCIPAL LEGAL ADVISOR UNDER SECTION 19 OF THE CONSTITUTION

WAIGANI: AMET CJ; KAPI DCJ; LOS, SALIKA, SHEEHAN JJ
19 June and 14 July 1997

Facts

The Principal Legal Advisor, an authorized law officer under Section 19 of the Constitution referred five questions to the Supreme Court concerning the appointment of the Prime Minister either following a national election or from time to time as occasion arises, either under s 142(2) and Part II of the Standing Orders of Parliament or s 142(3) and (4) following the comments of the Court in Haiveta v Wingti (No. 3) [1994] PNGLR. 197.

Held

1. Constitution s 142(2) and Part II of the Standing Orders of Parliament apply to the election and appointment of the Prime Minister following a national election. Haiveta v. Wingti (No. 3) [1994] PNGLR 197 clarified.
   
2. Constitution s 142(3) and (4) only apply to the election and appointment of the Prime Minister from time to time as the occasion arises, otherwise than following a general election: Haiveta v Wingti (No.3) (supra) confirmed.
   

Papua New Guinea case cited

Haiveta v Wingti (No. 3) [1994] PNGLR 197.

Counsels

J Baker, for the National Parliament.
F Damen, for the Principal Legal Advisor.
L Tilto, for the Leader of the Opposition.

14 July 1997

AMET CJ. This is a special reference made pursuant to s 19 of the Constitution by the Principal Legal Advisor to the National Executive Council seeking the opinion of the Court on five questions referred, relating to the interpretation and application of s 142 (2), (3) and (4) of the Constitution.

These issues have become necessary to be clarified as a result of comments by the Court in Haiveta v Wingti (No. 3) [1994] PNGLR 197 on the question of when the appointment of a Prime Minister takes place following a general election and the meaning of s 142 (2), (3) and (4). The relevant provisions are:

142. The Prime Minister
     

(1) An office of Prime Minister is hereby established.

(2) The Prime Minister shall be appointed, at the first meeting of the Parliament after a general election and otherwise from time to time as the occasion for the appointment of a Prime Minister arises, by the Head of State, acting in accordance with a decision of the Parliament.

(3) If the Parliament is in session when a Prime Minister is to be appointed, the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day.

(4) If the Parliament is not in session when a Prime Minister is to be appointed, the Speaker shall immediately call a meeting of the Parliament, and the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day.

I said in Haiveta v Wingti (No. 3) (supra) at pp 212-213, the following:

"Appointment of Prime Minister after a general election: ss 142(2) and (4).

Section 142(2) is a general enabling provision for the appointment of a Prime Minister. The operative provision is s 142(4). Section 142(2) simply states that the Prime Minister shall be appointed, at the first meeting of the Parliament after a general election and otherwise from time to time as the occasion for the appointment of a Prime Minister arises. Section 142(3) and (4) provide the time frame and the order in which the principal formal business of Parliament on that occasion shall be conducted. As I have concluded that the s 142(3) shall be "on the next sitting day" following Parliament being formally advised, to render consistency of this interpretation to the same expression also in s 142(4), and for the avoidance of uncertainty, following a general election s 142(2) and (4) apply. The election of the Governor-General, if necessary, the Speaker, and the Prime Minister shall take place "on the next sitting day" following the calling of Parliament. That is that, after Parliament is convened on the first day when the writs are returned and the new members are sworn into office, notice is given in the normal manner for the appointment of the Speaker and the Prime Minister, which are then adjourned to be considered and voted upon "on the next sitting day". This conclusion has the effect of over-ruling the case of Mopio v Speaker of the National Parliament (supra).

Question 1

"Do the provisions of Sections 142(3) and 142(4) of the Constitution apply solely to the election of the Prime Minister by Parliament following a vacancy occurring in that office, and not to the election of a Prime Minister by Parliament following a general election?"

It is apparent that in the above quoted passage I did state that s 142(3) and (4) applied to the appointment of the Prime Minister after a general election. The issue of the appointment of the Prime Minister after a general election did not arise for determination in the case of Haiveta v Wingti (No. 3) (supra). The principal issue was the appointment of the Prime Minister arising during the life of Parliament, when it was in session. Consequently, the issues as to whether s 142 (3) and (4) applied also to the appointment of the Prime Minister after a general election were not fully addressed by the parties as they were not necessary for the determination of the issue on appeal before the Court.

I am satisfied that my opinion was obiter dicta. It was not necessary for the ruling on the issues on appeal and was without the benefit of address by the parties.

I do affirm my opinion expressed in Haiveta v Wingti (No. 3) (supra) that s 142(2) is the general enabling provision for the appointment of the Prime Minister. It provides specifically the two occasions when a Prime Minister shall be appointed; firstly, at the first meeting of the Parliament after a general election, and secondly, from time to time as the occasion for the appointment of a Prime Minister arises. It is not necessary for this opinion, to discuss when and how the occasion for the appointment of a Prime Minister might arise, other than following a general election.

I am now satisfied that ss 142(3) and (4) apply to the appointment of a Prime Minister, the need for which arises from time to time, otherwise than after a general election.

Section 142(3) applies, "if the Parliament is in session when a Prime Minister is to be appointed". Section 142(4) applies, "if the Parliament is not in session when a Prime Minister is to be appointed. The "next sitting day" for the purposes of these two occasions, as decided in Haiveta v Wingti (supra) is affirmed. That issue does not now arise, given my opinion on this first question.

Consistent with the opinion that s 142(3) and (4) do not apply to the appointment of the Prime Minister after a general election, is the provisions of Part II of the Standing Orders of the National Parliament on the "Proceedings On The Meeting Of A New Parliament". These provide for the Swearing-In of the Members of Parliament, the election of the Speaker and the Prime Minister. These provisions give effect to s 142 (2) Constitution on the appointment of the Prime Minister after a general election, and s107 (2) Constitution on the election of the Speaker.

Answer to question 1:

The answer to Q. 1 is, Yes; ss. 142 (3) and (4) apply only to the election of a Prime Minister following a vacancy occurring from time to time, and not to the election of a Prime Minister following a general election.

Question 2

If yes to Q 1, does Part II of the Standing Order of Parliament govern the procedures for the election of a Prime Minister by Parliament following a general election?

Answer: Yes.

Question 3, 4 and 5

Answer: Not necessary to be answered.

KAPI DCJ. This is a special reference made by the Principal Legal Advisor under s 19 of the Constitution. Five questions have been referred for the opinion of the Court. They are as follows:

Question 1.

Do the provisions of Sections 142(3) and 142(4) of the Constitution apply solely to the election of a Prime Minister by Parliament following a vacancy occurring in that office, and not to the election of a Prime Minister following a general election?

Question 2.

If yes to question 1, does Part II of the Standing Orders of Parliament govern the procedure for the election of a Prime Minister by Parliament following a general election?

Question 3.

If no to question 1, does Section 142(3) or 142(4) of the Constitution fix the day upon which Parliament is to elect a Prime Minster at the meeting of Parliament called following a general election?

Question 4.

If yes to question 3, what is the day so fixed?

Question 5.

If yes to question 3, does s 134 of the Constitution have application so that a question of non-compliance with s 142 (3) or 142 (4) is non-justiciable?

This reference has been prompted by a desire to seek clarification of the proper legal position with regard to the particular day when the Prime Minister should be appointed following a general election. There is no judicial authority directly on this specific question. This clarification is important for the election of the Prime Minister after the forthcoming general elections.

In Haiveta v Wingti (No. 3) [1994] PNGLR 197, the Supreme Court considered the question of the election of a new Prime Minister following a resignation by the Prime Minister. In this case, the Prime Minister resigned from office while the Parliament was in session. The Court was therefore concerned with the interpretation and application of the terms of sub-section (3) of s 142 of the Constitution. In particular, the Court was concerned with the meaning of the words "the next sitting day". In the process of interpreting this subsection, the Court also considered sub-section (4) of s 142 which deals with a situation where the Prime Minster resigns from office when the Parliament is not in session. This subsection also uses the same words "the next sitting day" as the day when the Prime Minister should be elected. The Court unanimously concluded that the Prime Minister should not be elected on the first day when the Parliament is advised of the resignation of the Prime Minister but he should be elected on the "next sitting day".

The Chief Justice and I (with whom all the other members of the Court agreed) went further and considered the position with regard to the election of the Prime Minister following a general election. In brief we concluded that interpretation of the words "the next sitting day" in subsections (3) and (4) of s 142 is also applicable to the election of the Prime Minster following a general election. At page 220 I said:

"What the Constituent Assembly adopted is contained in s 142 in its present form. In relation to when the election should take place, subs (3) and (4) use the words ‘next sitting day’. That is a reference to a particular sitting day of the Parliament. It can be inferred from reading the whole of s 142 that ‘next sitting day’ would also apply to election of Prime Minister after a general election under s 142 (2)." (emphasis added)

The inference I drew in the above passage (underlined) is clearly obiter dicta. It was not necessary to deal with the issue, as it was not raised by the facts of the case. We also did not get the benefit of full arguments on the question by counsel. That question has been raised by this reference and counsel have put to us full arguments. For this reason I do not find myself bound by those obiter remarks. I wish now to consider the issue in the light of full arguments in the present reference.

Question 1

The issue raised by the reference also involves the consideration of the whole of s 142 of the Constitution. I begin with the general observations I made in Haiveta v Wingti (No. 3) (supra) at page 216:

"Under s 142 (2), there are essentially two categories of circumstances in which a new Prime Minister may be appointed. They are (a) ‘after a general election’ or (b) ‘from time to time as the occasion for the appointment of Prime Minister arises’.

The first circumstance deals with appointment of Prime Minister after a general election. A general election may be conducted on occasions set out under s 105 of the Constitution. It is not necessary to discuss these in this case, as they do not arise.

In this case, we are concerned with the appointment of the Prime Minister ‘from time to time as the occasion for the appointment arises’."

Later, on the same page I said:

"On what day is the Prime Minister to be elected in Parliament? This is the major issue to be determined in this case. Where a Prime Minister is to be appointed after a general election, s 142 (2) says a Prime Minster should be elected ‘at the first meeting of the Parliament’.

In contrast, s 142 (3) and (4) say a Prime Minister should be elected ‘on the next sitting day’."

One starts with the premise that s 142 (2) of the Constitution recognises two distinct set of circumstances; (a) election of the Prime Minister following a general election and (b) election of a Prime Minister from time to time as the occasion for the appointment of a Prime Minister arises. It is important to keep these two distinct categories in mind because as it will be apparent from my reasoning, the provisions of the Constitution treats the two categories differently.

The manner in which a Parliament is called to meet for the first time after a general election is different. That happens once every election. The calling of such a meeting is governed by s 1 of Organic Law on the Calling of Meetings of the Parliament (as amended)(hereinafter referred to as the Organic Law).

The calling of other meetings of the Parliament is governed by s 2 of the Organic Law (see also Part VII of Standing Orders). Where Parliament is not in session when the need to appoint a Prime Minister arises, the Speaker may call a meeting in accordance with s 142 (4) of the Constitution. Clearly, election of a Prime Minister following a general election cannot be governed by s 142 (4) of the Constitution.

The question is, whether, it maybe governed by s 142 (3) of the Constitution? It was argued by counsel for the Parliament that an election of a Prime Minister following a general election would come within the words "If the Parliament is in session when a Prime Minister is to be appointed...". That is to say, when a Parliament is called to meet in accordance with the Organic Law, the Parliament meets to appoint a Prime Minister. Essentially, he submitted that the obiter dicta remarks represent the correct conclusion in law and therefore we should adopt that conclusion in this reference.

On the other hand, counsel for the Principal Legal Advisor and the Leader of the Opposition argued that the decision in Haiveta v Wingti (No. 3) (supra) with regard to the meaning of the words "next sitting day" in s 142 (3) and (4) do not apply to election of the Prime Minister following a general election.

I have considered the submissions and find that subsection (3) of s 142 has to be examined closely in order to appreciate the circumstances to which it applies. Apart from prescribing the manner in which a Prime Minister is appointed, it makes reference to any nomination of a Governor General or appointment of a Speaker. The reference to the nomination of Governor General and the appointment of Speaker can only have meaning and are applicable where there is a vacancy in the office of Governor General and or a vacancy in the office of Speaker and the need to fill the respective offices at the same time as the need to appoint a Prime Minister. It would follow from this that if there were no vacancy in the respective offices of Governor General or the Speaker, the only business before the Parliament would be the election of the Prime Minister. That was the situation in Haiveta v Wingti (No. 3) (supra). Such a situation can only occur where there is a vacancy in the office of the Prime Minister during the life of a Parliament. It cannot be applicable to the election of a Prime Minister following a general election. Where the Parliament meets following a general election under the Organic Law, the Parliament must elect both the new Speaker as well as the new Prime Minister (see Part II of Standing Orders).

In addition, subsection (3) reads more harmoniously with subsection (4) of s 142 in that they deal with a vacancy that may occur in the office of Prime Minister during the life of the Parliament. Subsection (3) deals with a vacancy in the office of Prime Minister while the Parliament is in session and subsection (4) deals with a vacancy in the office of Prime Minister when the Parliament is not in session during the life of the Parliament. Subsection (3) as interpreted is not compatible with appointment of Prime Minister following a general election.

I have concluded that the Constitution deals with the two circumstances differently. The Constitution has not subjected the election of the Prime Minister following a general election to the same requirement of "next sitting day" as found in s 142 (3) and (4) of the Constitution.

My answer to this question would be: s 142(3) and (4) of the Constitution do not apply to the election of the Prime Minister following a general election.

Question 2

It would follow from my conclusions in question 1 that Part II of the Standing Orders would govern the practice and procedure for the election of the Prime Minister following a general election.

Question 3

It is not necessary to answer this question.

Question 4

The day fixed for appointment of the Prime Minister following a general election would be determined by the Parliament in accordance with the practice and procedure set out under Part II of the Standing Orders. According to these Standing Orders, the first business of the Parliament is to appoint a Speaker. This is then followed by election of the Prime Minister.

In so far as these procedures are solely provided for in the Standing Orders, the question of whether or not the Parliament complies with these provisions are non-justiciable under s 134 of the Constitution. There is no provision in the Constitution which deals with the particular day when the Prime Minister is to be elected following a general election. Section 142 (2) simply requires that the Prime Minister should be elected at the first sitting of the Parliament but does not indicate the particular day when the election should take place. As I pointed out in Haiveta v Wingti (No. 3) (supra) this only requires that the Prime Minister must be elected at the first sittings of the Parliament after the general election. As to which particular day of the sittings this election will take place and the order of business is the subject of the provisions of Standing Orders.

Question 5

This question does not arise in the form it is referred and therefore it is not necessary to answer it.

LOS, SALIKA JJ. In this Special Reference it is sought to clarify certain issues arising from the leading opinions of Amet, CJ and Kapi DCJ in Haiveta v Wingti (No. 3) [1994] PNGLR 197. The clarification is sought by way of five questions. The thrust of the issue is whether the decision in Haiveta v Wingti (No. 3) that Prime Minister must be appointed on the "next sitting day" of the Parliament applies to appointment of Prime Minister after a general election. In that case we agreed with their Honours in the essentials of their reasoning and their conclusions. In the present reference their Honours have explained their respective positions. We have read their views and we agree with them. We therefore agree with their answers to questions 1 and 2. We also agree that questions 3, 4 and 5 are not necessary to be answered.

SHEEHAN J. I agree with the opinions of the Chief Justice and the Deputy Chief Justice.

Lawyer for the National Parliament: J Baker.
Lawyer for the Principal Legal Advisor: F Damen.
Lawyer for the Leader of the Opposition: L Tilto.